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Higher Education Law 2015: Current Issues & Recent Developments Title IX and Claims of Sexual Harassment and Sexual Violence in Higher Education
Jane Sovern & Dennis Cariello For the Practicing Law Institute May 1, 2015
Disclaimers The contents of these materials and the accompanying
discussion are for information purposes only and do not constitute legal or regulatory advice. No party should act or refrain from acting on the basis of
any statements made today without seeking individualized, professional counsel as appropriate. These materials and the accompanying discussion are
primarily focused on certain aspects of Title IX requirements and are not intended to be comprehensive of all requirements applicable to all educational agencies and institutions. 1
Introduction Jane Sovern Deputy General Counsel, City University of New York Has worked in higher education for over 24 years Co‐chair of CUNY’s Title IX Working Group Dennis Cariello: Shareholder and Co‐Practice Group Leader in the Education Group. Former Deputy General Counsel for Postsecondary Education in US Department of Education (DoED) Former Deputy Assistant Secretary for Enforcement in the DoED’s Office for Civil Rights (OCR) 2
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Agenda What’s happened in the last year? Thorny issues Mediation: Do you need a disciplinary hearing every time? Handling a complaint and a concurrent criminal proceeding Issues with interim measures Requests for Confidentiality A look at OCR’s enforcement actions in the last year What are the trends in enforcement resolutions? Case Study Conclusion: Best Practices 3
What’s happened in the last year?
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.
Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a)
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What’s happened in the last year? How about in the last week . . . John Doe v. Columbia University (14 CV 3573) (grant motion to dismiss – failure to plead Title IX cause of action) OCR issued guidance on Title IX Coordinators (http://www2.ed.gov/about/offices/list/ocr/letters/colleague‐ 201504‐title‐ix‐coordinators.pdf ) OCR also issued a “Title IX Resource Guide” (http://www2.ed.gov/about/offices/list/ocr/docs/dcl‐title‐ix‐ coordinators‐guide‐201504.pdf )
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What’s happened in the last year? Title IX Coordinator should “should report directly to the recipient’s senior leadership, such as the district superintendent or the college or university president” Full‐time, stand‐alone Title IX Coordinator preferred Large universities should think about having more than one Although Title IX Coordinator typically will handle “coordination,” may handle specific cases or determine outcome of complaints Title IX Coordinator should be involved in policy drafting/revision A dedicated website is “encouraged” and the Title IX web page should have a link on the school's home page College may not leave position vacant for any amount of time.
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What’s happened in the last year?
“A recipient, therefore, must not interfere with the Title IX coordinator’s participation in complaint investigations and monitoring of the recipient’s efforts to comply with and carry out its responsibilities under Title IX.”
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What’s happened in the last year? Schools should enter into a Memorandum of Understanding (MOU) with local law enforcement The White House Task Force to Protect Students from Sexual Violence released a model (http://www.whitehouse.gov/sites/default/files/docs/
white_house_task_force_law_enforcement_mou.pdf)
(1) training and prevention efforts; (2) coordination and communication related to a report of sexual violence; and (3) how the parties will respond to reports of sexual violence
Local law enforcement departments are proposing MOUs 8
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Thorny Issues Mediation: Do you need a disciplinary hearing every time? “Grievance procedures generally may include voluntary informal mechanisms (e.g., mediation) for resolving some types of sexual harassment complaints. OCR has frequently advised recipients, however, that it is improper for a student who complains of harassment to be required to work out the problem directly with the alleged perpetrator, and certainly not without appropriate involvement by the school (e.g., participation by a trained counselor, a trained mediator, or, if appropriate, a teacher or administrator). In addition, as stated in the 2001 Guidance, the complainant must be notified of the right to end the informal process at any time and begin the formal stage of the complaint process. Moreover, in cases involving allegations of sexual assault, mediation is not appropriate even on a voluntary basis. OCR recommends that recipients clarify in their grievance procedures that mediation will not be used to resolve sexual assault complaints (emphasis added).” ‐OCR April 4, 2011 Dear Colleague letter 9
Thorny Issues Definition of Sexual Assault: VAWA reauthorization defines “sexual assault” as: “Any nonconsensual sexual act proscribed by Federal, tribal, or State law,
including when the victim lacks capacity to consent.” 42 USC 13925(a)(29) State definitions vary; New York State does not define sexual assault. For VAWA/Clery purposes, sexual assault includes rape, fondling, incest, and statutory rape. Fondling is “the touching of the private body parts of another person for the purpose of sexual gratification, without the consent of the victim, including instances where the victim is incapable of giving consent because of … age or … incapacity.” 34 CFR Part 668, Appendix A
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Thorny Issues What does the 2011 DCL mean by “mediation”? “Grievance procedures generally may include voluntary
informal mechanisms (e.g., mediation) for resolving some types of sexual harassment complaints.” Does “mediation” necessarily mean a voluntary face‐to‐face discussion involving the complainant and accused, with a trained facilitator? Can “mediation” mean a voluntary resolution mechanism of any kind, such as a process whereby the college and the accused resolve disciplinary charges by agreement by imposing an appropriate penalty on the accused student?
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Thorny Issues “…[I]n cases involving allegations of sexual assault, mediation is not appropriate, even on a voluntary basis.” If a student has accused another student of unwanted forcible touching of a private body part, such as pinching or rubbing her breast or buttocks, is it permissible to resolve such a case without a full hearing? What if the complainant refuses to testify and asks the college to resolve the case? What if the accused agrees to accept responsibility and take an appropriate penalty? What if the complainant leaves the college and does not respond to communications?
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Thorny Issues Issues with Interim Measures Which ones do you utilize and why Factors you look at Due process concerns When do the interim measures end?
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Thorny Issues Handling a Complaint and a concurrent law enforcement investigation: Establish and maintain relationships with law enforcement (police, DA including special victims bureaus) and community resources. Clarify roles and responsibilities of campus personnel (Public Safety, Legal, TIX Coordinator, Student Affairs, HR) and ensure complainant understands as well Plan meetings carefully whenever possible to minimize repetition for complainant Defer investigation if requested (get request in writing) but don’t defer interim measures Frequent communication with complainant and accused Document decisions and actions contemporaneously 14
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Thorny Issues
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Requests for confidentiality: Must investigate even if complainant requests confidentiality Should explain consequences to complainant Should inform complainant it cannot ensure confidentiality
Considering the request for confidentiality: the seriousness of the alleged harassment; the complainant’s age; whether there have been other harassment complaints about the same individual; and the alleged harasser’s rights to receive information about the allegations if the information is maintained by the school as an “education record” under FERPA In some cases state laws may require reporting despite request for confidentiality. 15
OCR’s Enforcement Actions in the Last Year
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Covered A Lot of Ground
Dealt with Male on Male Conduct (likely gender stereotyping/bullying) Dealt with issues related to treatment of pregnant students Cases against proprietary/vocational schools as well as traditional, residential universities Issues related to standard of proof Imposed monetary sanctions (payable to the complainant) Complete discussion in your materials 16
OCR’s Enforcement Actions in the Last Year
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Common Compliance Failures Lack of clear and consistent policies and procedures for
resolving Title IX complaints;
Finding information on how to file a complaint to difficult
to find and failed to publicize the information to students and employees;
Didn’t use the preponderance of the evidence standard in
evaluating complaints;
Did not provide specific timeframes for the conclusion of a
complaint and failed to resolve complaints timely;
Did not conduct annual climate checks; Did not enter into a Memorandum of Understanding with
local law enforcement regarding the handling of sexual violence issues involving the university; and Failed to provide adequate training for faculty, staff and students
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OCR’s Enforcement Actions in the Last Year
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Common Remedies Imposed Track and report annually to OCR on the Title IX Coordinator’s actions and the university’s handling of Title IX complaints; Revise the Title IX grievance procedures and policies; Change the standard of proof Provide regular and mandatory trainings; Enhance outreach and feedback from the students; Conduct a climate survey Provide monetary compensation to the Complainant; “provide the students identified in the complaints with remedies
relating to the educational and other expenses incurred from the date on which each student first reported alleged sexual assault/violence to the university to the date of resolution.”
Review past complaints to assess whether the school investigated the complaints consistent with Title IX and provide any additional remedies necessary for the complainants; and Provide interim relief for any complainants. 18
Case Studies
See Course Handbook, pages 24‐26 Case Study No. 1
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Conclusion & Best Practices
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Centers for Disease Control and Prevention Guidance Prevention strategies should be theory‐based and include multiple skill‐based sessions Two programs have “rigorous evidence of effectiveness for preventing sexual violence”: Safe Dates and the building‐ level intervention of Shifting Boundaries; Developing comprehensive prevention plans; “Brief, one‐session educational programs focused on increasing awareness or changing beliefs and attitudes are not effective at changing behavior in the long‐term” Use data (campus climate surveys); Evaluating strategies that are implemented; and Sharing lessons learned 20
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Conclusion & Best Practices
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Create a campus climate that is welcoming to students and does not tolerate sexual violence or harassment. Clear procedures from a student perspective and a staff perspective Clear lines of communication and coordination among staff Use of interim measures Treat accused and accuser equally Strong retaliation policies Keep records Know your campus Involve your campus 21
Questions
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Jane Sovern:
[email protected]
Dennis Cariello:
[email protected] Twitter: @educounsel
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